Wing v. U-Haul

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSHUA WING, et al., Plaintiffs/Appellants,

v.

U-HAUL INTERNATIONAL, INC., et al, Defendants/Appellees.

No. 1 CA-CV 18-0765
FILED 2-18-2020

Appeal from the Superior Court in Maricopa County
No. CV 2016-050917
The Honorable Theodore Campagnolo, Judge

VACATED AND REMANDED

COUNSEL

Wagstaff & Cartmell, LLP, Kansas City, MO
By Jonathan P. Kieffer, Jack T. Hyde
Co-Counsel appearing Pro Hac Vice for Plaintiffs/Appellants

Garrey Woner Hoffmaster & Peshek PC, Scottsdale
By D. Reid Garrey, Erin M. Evans
Co-Counsel for Plaintiffs/Appellants
Bowman and Brooke LLP, Phoenix
By Travis M. Wheeler
Co-Counsel for Defendants/Appellees

Thorpe Shwer PC, Phoenix
By Ryan S. Patterson
Co-Counsel for Defendants/Appellees

Lightfoot Franklin White LLC, Birmingham, AL
By J. Banks Sewell, III, Joel Chandler Bailey, David A. Rich
Co-Counsel appearing Pro Hac Vice Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Joshua and Clayton Wing (collectively, “the Wings”) appeal
from a judgment entered in favor of U-Haul International, Inc., et al.,
(“U-Haul”) following a jury verdict. Because the negligence per se jury
instructions contained erroneous “no fault” language, we vacate the
judgment and remand for a new trial on the Wings’ claim of negligence per
se.

BACKGROUND

¶2 After loading a Toyota 4Runner onto a single axle tow dolly
rented from U-Haul and attached to a Dodge Ram pickup truck by U-Haul
personnel, Mathew Delcollo and Joshua Wing embarked on a road trip
from Oregon to Texas. While traveling on an Arizona highway on the
second day of their journey, Delcollo lost control of the Dodge Ram and the
vehicle combination (pickup truck and tow dolly) careened off the highway
and repeatedly rolled. Wing was ejected from the truck and sustained
severe injuries, including paralysis.

¶3 The Wings sued U-Haul, alleging the tow dolly’s lack of
brakes substantially contributed to the accident. Following protracted
litigation, the superior court granted the Wings’ motion for partial
summary judgment and found, as a matter of law, that A.R.S. § 28-952(A)(3)
required the tow dolly at issue “to be equipped with brakes.” At trial, the

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parties presented competing expert opinion testimony on the primary issue
―whether the absence of tow dolly brakes caused and/or contributed to the
accident. After a 14-day trial, the jurors returned a general verdict in favor
of U-Haul. In its final judgment, the superior court confirmed the jury’s
defense verdict and awarded U-Haul its taxable costs. The Wings timely
appealed.

DISCUSSION

¶4 The Wings argue the jury’s verdict, upon which the judgment
is based, must be overturned because the superior court: (1) provided
erroneous negligence per se jury instructions; (2) improperly excluded
evidence that U-Haul’s representatives lied to the Arizona legislature when
they lobbied to amend A.R.S. § 28-952; and (3) erroneously excluded
evidence of other similar accidents. We address each claim in turn.

I. Negligence Per Se Jury Instructions

¶5 The Wings contend the superior court included erroneous
language in its preliminary and final instructions to the jury on negligence
per se. According to the Wings, these erroneous instructions allowed
U-Haul to improperly argue that it was not at fault for violating the
statutory brake requirement. In response, U-Haul argues: (1) the given
instructions properly stated the law; (2) the Wings waived their challenge
by failing to move for a new trial; and (3) the Wings were not entitled to
negligence per se instructions and therefore any error in the given
instructions was necessarily harmless.

¶6 Based on the superior court’s partial summary judgment
ruling that U-Haul was statutorily required to equip the tow dolly at issue
with brakes, the Wings proposed the following preliminary instructions:

On Plaintiffs’ claim of fault for negligence per se, Plaintiffs
have the burden of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries;
and

2. Plaintiffs’ damages.

...

NEGLIGENCE 1 Violation of Statute (Negligence Per Se)

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I am now going to instruct you on certain laws of the State of
Arizona. When a person violates these laws, that person is
negligent.

When it is operated on a highway, a trailer or semitrailer with
a gross weight of three thousand pounds or more shall be
equipped with brakes that are adequate to control the
movement of and to stop and to hold the vehicle.

It has been established as a matter of law that Defendants’ tow
dolly at issue in this case was a trailer or semitrailer, had a
gross weight of three thousand pounds or more, and was
required to be equipped with brakes that were adequate to
control the movement of and to stop and to hold the vehicle.

The tow dolly at issue in this case was not equipped with
brakes.

You should determine whether Defendants’ negligence was a
cause of injury to Plaintiffs.

¶7 U-Haul objected to the proposed instructions, primarily
challenging the superior court’s ruling that the tow dolly was subject to
A.R.S. § 28-952(A)(3)’s brake requirement. Without relinquishing that
claim, U-Haul urged the court to include language that would permit the
jury “to find that the [statutory] violation was excusable.” In response, the
Wings argued that inclusion of “excuse” language was inappropriate
because U-Haul had made no attempt to comply with the statutory
requirement.

¶8 Acknowledging that “excuse” language did not entirely “fit”
the “facts” of the case, the superior court nonetheless “err[ed] on the side of
caution” and fashioned the following negligence per se preliminary
instruction for the jury:

It has been established as a matter of law that the tow dolly in
this case loaded with a Toyota [4R]unner, which exceeded a
total weight of 3,000 pounds, was required to be equipped
with brakes that were adequate to control the movement of
and to stop and to hold the vehicle and that were designed to
either be applied by the driver of the towing motor vehicle
from its cab or be of a type that operates automatically when
the service brakes of the towing motor vehicle are applied.
The tow dolly in this case was not equipped with brakes.

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Defendants have the burden of proving that their failure to
equip the tow dolly with brakes as required by law was not
Defendants’ fault. If Defendants do not meet their burden,
then on Plaintiffs’ claim of fault for negligence per se,
Plaintiffs have the burden of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries;
and

2. Plaintiffs’ damages.

¶9 During opening statements, defense counsel told the jurors
the evidence would show that U-Haul’s tow dolly was safe and “didn’t
need brakes.” According to defense counsel, the statutory requirement for
brakes was enacted to ensure that vehicles meet a certain “stopping
distance standard,” and because the tow dolly design met that standard,
brakes were unnecessary. In addition, and notwithstanding the superior
court’s partial summary judgment ruling, defense counsel presented the
jury with U-Haul’s understanding that A.R.S. § 28-952 does not apply to
tow dollies.

¶10 Consistent with this opening statement, defense counsel
elicited testimony from both U-Haul’s chairman and director of
engineering that, to their knowledge, no individual or entity had previously
asserted tow dollies are subject to A.R.S. § 28-952. In fact, when questioned
specifically about governmental regulation, the chairman testified that no
law enforcement authority had ever cited U-Haul or a renting customer for
operating tow dollies in Arizona without brakes.

¶11 Over the Wings’ objection, the superior court provided the
jury the following final instruction regarding negligence per se:

Violation of Statute

I am now going to instruct you on certain laws of the State of
Arizona. If you find from the evidence that a person has
violated any of these laws, that person is negligent.

You should determine whether Defendants’ negligence was a
cause of injury to Plaintiffs.

When it is operated on a highway, a trailer or semitrailer with
a gross weight of three thousand pounds or more shall be

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equipped with brakes that are adequate to control the
movement of and to stop and to hold the vehicle.

This Court has already determined as a matter of law that this
tow dolly, under the laws of the State of Arizona, was
required to be equipped with brakes.

The tow dolly in this case did not have brakes. Ignorance of
the law is not an excuse for a violation of the law.

Defendants have the burden of proving that their failure to
equip the tow dolly with brakes was not Defendants’ fault. If
Defendants do not meet their burden, then on Plaintiffs’ claim
of fault for violation of the statute, Plaintiffs have the burden
of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries;
and

2. Plaintiffs’ damages.

¶12 Alluding to this final jury instruction during closing
argument, defense counsel told the jurors that U-Haul disagreed with the
superior court’s ruling that tow dollies are statutorily required to have
brakes. Citing the trial testimony that no governmental entity had
previously applied the statutory brake requirement to tow dollies, defense
counsel asserted no fault could be ascribed to U-Haul for its failure to install
brakes on the tow dolly at issue.

¶13 We review de novo whether jury instructions accurately state
the law. Stafford v. Burns, 241 Ariz. 474, 478, ¶ 10 (App. 2017). In assessing
accuracy, “the test is whether, considering the instructions as a whole, the
challenged instructions mislead the jury as to the proper rules of law.” Life
Inv’rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182 Ariz. 529, 532 (App.
1995) (internal quotation omitted). “An instruction will warrant reversal
only if it was both harmful to the complaining party and directly contrary
to the rule of law.” State Farm Fire & Cas. In. Co. v. Grabowski, 214 Ariz. 188,
192, ¶ 13 (App. 2007). “We will not overturn a jury verdict on the basis of
an improper instruction unless there is substantial doubt regarding
whether the jury was properly guided in its deliberations.” Id.

¶14 Negligent conduct “falls below the standard established by
law” to protect “others against unreasonable risk of harm.” Tellez v. Saban, 188 Ariz. 165, 169 (App. 1996). Upon determining that a “statute’s purpose

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is in part to protect a class of persons that includes the plaintiff” from “the
type of harm that occurred,” a court may adopt the statute as the relevant
standard of care in a negligence action. Id.

¶15 The negligence per se doctrine allows a plaintiff to establish
the elements of duty and breach in a negligence claim by proving the
defendant violated the statute that supplies the relevant duty of care. See
Crown v. Raymond, 159 Ariz. 87, 89 (App. 1988). “Violation of the statute
thus stamps the defendant’s conduct as negligence per se[] but will not
render the defendant liable to the plaintiff unless the violation is the legal
cause of the plaintiff’s injury and no other defenses negate liability.” Tellez,
188 Ariz. at 169 (internal quotation omitted).

¶16 To evaluate whether the challenged instructions correctly
informed the jurors that a party may overcome a technical violation of the
statutory brake requirement by demonstrating lack of fault for non-
compliance, we consider a series of cases involving negligence per se under
A.R.S. § 28-952. In Dayton v. Palmer, 1 Ariz. App. 184, 185 (1965), a driver
caused an accident after his brakes failed. Notwithstanding the driver’s
technical violation of A.R.S. § 28-952, the superior court denied the
plaintiff’s motion for a directed verdict on negligence. Id. On appeal, this
court upheld the superior court’s denial, reasoning the specific facts of the
case presented “sufficient evidence of lack of fault on the [driver’s] part to
present a jury question on liability.” Id. at 187. In reaching this conclusion,
the court acknowledged that a violation of A.R.S. § 28-952 constitutes
negligence per se, but determined that “the mere fact that [a] defendant’s
brakes failed is not necessarily a violation within the intended meaning of
[the statute] when there was sufficient evidence from which the jury might
find that the brake failure was not due to any fault of the defendant.” Id.
Likewise, in O’Donnell v. Maves, 108 Ariz. 98, 99 (1972), the supreme court
upheld the denial of a directed verdict on an A.R.S. § 28-952 violation,
explaining a directed verdict is only warranted when the defendant admits
the violation and “fails to offer any legal excuse” for the negligence. In that
case, the defendant’s brakes “had failed due to a rupture caused by the
rubbing of the gasoline tank against the brake line,” a circumstance the
defendant could not have reasonably detected. Id. The supreme court held
that once a technical violation of A.R.S. § 28-952 has been established, “the
burden shifts to [the] defendant” to prove “his failure to comply with the
statute was without fault.” Id. at 100. “[I]f there is sufficient evidence from
which the jury could find that the brake failure was not due to the fault of
the defendant, it then becomes a question of fact for the jury to decide
whether fault in fact existed.” Id.

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¶17 Turning from cases involving requests for directed verdicts to
requests for jury instructions, in Platt v. Gould, 26 Ariz. App. 315, 316 (1976),
the defendant had trouble with her brakes the day before she caused the
accident at issue. After a jury verdict for the plaintiff, the defendant
appealed the denial of her request for a jury instruction that a brake failure,
alone, is not a violation of A.R.S. § 28-952. Id. This court upheld the denial
of her requested instruction, holding a violation of A.R.S. § 28-952, absent
some “legal excuse,” constitutes negligence as a matter of law, and the
defendant’s prior knowledge of her brake problem foreclosed any “issue of
legal excuse to submit to the jury.” Id. at 316–17. By comparison, in Bliss v.
Treece, 134 Ariz. 516, 518 (1983), the defendant was unable to prevent his
vehicle’s collision with the plaintiff’s car, notwithstanding his application
of his vehicle’s brakes. After a defense verdict, the plaintiff appealed the
superior court’s denial of her request for a negligence per se instruction. Id.
at 517, 520. The supreme court affirmed, however, concluding there was no
clear evidence of brake failure, and reasoning that “the legislature intended
to impose liability only if the motorist knew or should have known of the
problem and/or otherwise failed to operate or maintain his brakes in a
reasonable manner.” Id. at 520.

¶18 Distilled, these cases hold that a violation of A.R.S. § 28-952 is
negligence per se, but such statutory non-compliance may be excused when
a defendant, though diligent and reasonable, was unable to comply with
the statute. See Brannigan v. Raybuck, 136 Ariz. 513, 517 (1983). In other
words, when circumstances beyond a defendant’s knowledge or control
prevent compliance, the statutory violation is legally excused. See id.
Importantly, none of these cases suggest a statutory violation is legally
excused when a defendant is merely ignorant of the law or the scope of its
application.

¶19 Read in light of these cases, the superior court’s negligence
per se jury instructions correctly stated the law. In both the preliminary and
final instructions, the court told the jurors that U-Haul had violated the law
by failing to equip the tow dolly at issue with brakes and therefore bore the
burden of proving that it was not at fault for its statutory non-compliance.
These instructions are entirely consistent with the governing caselaw.

¶20 The Wings do not contest the legal accuracy of the given
instructions. Rather, the Wings contend, as a matter of law, that U-Haul was
not entitled to legal excuse language because no evidence supported a
finding that U-Haul had reasonably and diligently attempted to comply
with the law and somehow failed to do so through no fault of its own.

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¶21 While a party must move for a new trial to preserve a claim
that insufficient evidence supported a given jury instruction, a purely legal
challenge to a jury instruction may be preserved for appellate review
through a specific objection in the superior court. See A.R.S. § 12-2102(A)
(“Upon an appeal from a final judgment, the supreme court shall review
any intermediate orders involving the merits of the action and necessarily
affecting the judgment, and all orders and rulings assigned as error,
whether a motion for a new trial was made or not.”); see also Lewis v. S. Pac.
Co., 105 Ariz. 582, 583 (1970) (explaining a party need not move for a new
trial to preserve a challenge to “the legality” of given instructions on
appeal).

¶22 In this case, U-Haul failed to present any evidence that it
attempted to comply with A.R.S. § 28-952 but was unable to do so. Instead,
and notwithstanding the superior court’s partial summary judgment
ruling, U-Haul argued A.R.S. § 28-952 does not apply to tow dollies, or at a
minimum, that U-Haul reasonably believed it does not. Although U-Haul
admitted it was aware of the statutory brake requirement and asserted it
complied with A.R.S. § 28-952 with respect to its other rental vehicles, at its
core, U-Haul nonetheless presented an “ignorance of the law” argument. In
other words, defense counsel put forward an alternative interpretation of
A.R.S. § 28-952 that absolved U-Haul of fault and argued U-Haul’s
ignorance of the scope and application of the statute was excusable. This is
not the type of “legal excuse” contemplated by any of the controlling
caselaw. Instead, read together, the cases stand only for the proposition that
an inability to comply with the statute, notwithstanding one’s diligent and
reasonable attempts to do so, may be excused. In contrast to the controlling
caselaw, U-Haul, without question, made no attempt to comply with A.R.S.
§ 28-952 with respect to its tow dollies, having previously adopted a policy
to systematically remove its tow dollies’ brakes.

¶23 Because U-Haul failed to present the type of evidence that
could support a legal excuse instruction, the superior court did not engage
in a qualitative evidentiary inquiry to evaluate U-Haul’s request for “no
fault” language, and therefore the Wings were not required to move for a
new trial to preserve their challenge. On this record, and as a matter of law,
the inclusion of the “no fault” language in the negligence per se jury
instructions was legally incorrect.

¶24 Nonetheless, asserting the Wings were not entitled to
negligence per se jury instructions, U-Haul argues any error in the given
instructions was necessarily harmless. Specifically, U-Haul contends, as it

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did in opposition to the motion for partial summary judgment, that tow
dollies are not subject to A.R.S. § 28-952’s brake requirement.

¶25 “We interpret statutes and review summary judgment rulings
de novo.” Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015). “When
interpreting a statute, our primary goal is to give effect to the legislature’s
intent.” Id. (internal quotation omitted). “We derive that intent by
examining the statute’s language; if the language is ambiguous, we look to
the statute’s history, context, consequences, and purpose.” Id. When
statutes relate to the same subject or the same general purpose, they
“should be read in connection with, or should be construed with other
related statutes, as though they constituted one law.” Pinal Vista Properties,
L.L.C. v. Turnbull, 208 Ariz. 188, 190, ¶ 10 (App. 2004) (internal quotation
omitted). “Further, each word or phrase of a statute must be given meaning
so that no part is rendered void, superfluous, contradictory or
insignificant.” Id. (internal quotation omitted).

¶26 Under A.R.S. § 28-952(A)(3), trailers and semitrailers operated
on highways, “with a gross weight of three thousand pounds,” must “be
equipped with brakes that are adequate to control the movement of and to
stop and to hold the vehicle.” To comply with the statute, the brakes must
be “designed to either be applied by the driver of the towing motor vehicle
from its cab or be of a type that operates automatically when the service
brakes of the towing motor vehicle are applied.” Id.

¶27 Pursuant to the definitional statutes in effect at the time of the
accident: (1) a “vehicle” is “a device in, on or by which a person or property
is or may be transported or drawn on a public highway”; (2) a “semitrailer”
is “a vehicle that is with or without motive power, other than a pole trailer,
that is designed for carrying persons or property and for being drawn by a
motor vehicle and that is constructed so that some part of its weight and
that of its load rests on or is carried by another vehicle”; and (3) a “trailer”
is “a vehicle that is with or without motive power, other than a pole trailer,
that is designed for carrying persons or property and for being drawn by a
motor vehicle and that is constructed so that no part of its weight rests on
the towing vehicle.” A.R.S. § 28-101(48), (55), (58) (2013); 2013 Ariz. Sess.
Laws, ch. 129, § 1.

¶28 Reading A.R.S. § 28-952(A)(3) in light of these definitional
provisions, a device that is designed to be drawn by a motor vehicle and
carry persons or property, whether some or none of its weight rests on a
towing vehicle, must be equipped with brakes when operated on highways
if the total weight of the loaded device is three thousand pounds or more.

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It is undisputed that tow dollies are devices designed to be drawn by a
motor vehicle and transport property. Therefore, on its face and given a
plain reading, A.R.S. § 28-952(A)(3) encompasses tow dollies, whether
classified as trailers or semitrailers.

¶29 Despite the broad statutory definitions of vehicle, semitrailer,
and trailer set forth in A.R.S. § 28-101 (2013), U-Haul contends that other,
related statutory language clarifies that a tow dolly may not be classified as
a trailer or semitrailer. First, U-Haul points to A.R.S. § 28-101(55)’s
definition of trailer, which also states that a “semitrailer equipped with an
auxiliary front axle commonly known as a dolly is deemed to be a trailer.”
2013 Ariz. Sess. Laws, ch. 129, § 1. According to U-Haul, this additional
language in the definitional provision demonstrates that a tow dolly is
statutorily distinct from a semitrailer or trailer. Advancing the same
reasoning, U-Haul cites A.R.S. § 28-1095(G)(1), which states that the
limitations on the length of various trailer and semitrailer combinations set
forth in subsections (B) and (C) do not preclude a motor vehicle from
pulling “one single-axle tow dolly on which a motor vehicle may be
transported.” While these provisions demonstrate that a tow dolly is not
statutorily synonymous with a trailer or a semitrailer, neither statute
excludes tow dollies from either the semitrailer or trailer classifications.
Instead, read in harmony with A.R.S. § 28-101’s other provisions clearly
encompassing a tow dolly, the language cited in A.R.S. §§ 28-101(55),
-1095(G) reflects that tow dollies fall within a subset category of either
trailers or semitrailers.

¶30 Furthermore, as noted by the Wings, had the Arizona
legislature intended to exempt tow dollies from the statutory brake
requirement, it could have expressly done so. For example, in A.R.S.
§ 28-2153(A) and A.R.S. § 28-2153(D)(8)(d), the legislature made clear that
single axle tow dollies are not subject to the general registration
requirement for motor vehicles, trailers, and semitrailers. Likewise, the
statutory definitions of semi-trailer and trailer set forth in A.R.S.
§ 28-101(48) and A.R.S. § 28-101(55) expressly exclude pole trailers,
demonstrating that the legislature contemplated the vehicles that fell within
those broad definitions and opted to exempt only one.

¶31 Given the plain language of A.R.S. § 28-952(A)(3), the
definitional provisions in effect at the time of the accident, and the broader
statutory scheme regulating transportation, the tow dolly at issue was

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statutorily required to be equipped with brakes.1 Therefore, contrary to
U-Haul’s contention, the superior court did not err by providing negligence
per se jury instructions, but, as noted above, its inclusion of legal excuse
language was erroneous. Specifically, the portion of the instruction stating,
“Defendants have the burden of proving that their failure to equip the tow
dolly with brakes was not the Defendants’ fault,” was incorrect.

¶32 Citing Golonka v. Gen. Motors Corp., 204 Ariz. 575, 584, ¶ 27
(App. 2003) and Gomulka v. Yavapai Mach. & Auto Parts, Inc., 155 Ariz. 239,
242–43 (App. 1987), U-Haul contends the jury’s defense verdict on the
Wings’ product liability claim refutes any argument that the jurors may
have reached a different verdict on the Wings’ negligence per se claim had
the superior court provided proper jury instructions. The cases U-Haul cites
are inapposite, however, and stand only for the proposition that a jury
cannot logically and consistently find for a defendant on a claim of strict
liability while simultaneously finding for a plaintiff on a claim of negligent
design. Golonka, 204 Ariz. at 584, ¶ 27; Gomulka, 204 Ariz. at 243. Had the
jurors properly been instructed in this case that the negligence elements of
duty and breach had been categorically established, they may have found
that the Wings proved causation on the negligence per se claim—without
contradicting their verdict on the strict liability claim. Likewise, U-Haul’s
reliance on Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 341 (App.
1983), for the proposition that the instructional error at issue was harmless,
is misplaced. In that case, this court upheld the superior court’s denial of a
defense motion for a judgment as a matter of law after several counts were
submitted to the jury and the jurors returned a general verdict against the
defense. Id. In affirming the court’s denial, we noted that the general verdict
could be upheld if there was sufficient evidence to sustain the verdict on
any count, even if there was insufficient evidence to sustain the verdict on
other counts. Id. In this case, the inverse is true—the general verdict for the
defense must be overturned if the instructional error invalidated the verdict
as to any count.

¶33 On this record, we cannot say that the errant jury instructions
were harmless. Had the jurors properly been instructed, the only issue
before them on the Wings’ negligence per se claim would have been
causation (as relevant here, damages were not disputed). Because the
parties submitted competing expert opinion testimony regarding
causation, it is not clear on this record that the jury would have returned a

1 Although U-Haul initially challenged the superior court’s partial
summary judgment ruling that the loaded tow dolly at issue weighed in
excess of 3,000 pounds, it has not challenged that ruling on appeal.

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general defense verdict absent the faulty instruction. Therefore, reversal is
warranted. See Salt River Project Agric. Imp. and Power Dist. v. Westinghouse
Elec. Corp., 176 Ariz. 383, 388 (App. 1993) (“Whe[n] an erroneous instruction
has been given on the law, and a correct instruction might have produced
a different result, the error is not cured by the fact that the jury might have
found for the prevailing party on some basis unaffected by the error.”)
(internal quotation omitted).

II. Evidence of Legislative Lobbying

¶34 The Wings contend the superior court improperly excluded
evidence that a U-Haul representative lobbied the Arizona legislature to
amend A.R.S. § 28-101’s definitions of semitrailer and trailer to expressly
exclude tow dollies. In making this claim, the Wings challenge both the
court’s initial determination that the lobbying evidence was irrelevant,
post-accident conduct and its subsequent finding that U-Haul did not
“open the door” to the evidence at trial.

¶35 While the parties litigated the Wings’ motion for partial
summary judgment on the scope and application of A.R.S. § 28-952(A)(3), a
lobbyist representing U-Haul appeared before a legislative committee and
introduced a bill to amend the statutory definitions of trailer and
semitrailer. Before voting on the measure, a legislator specifically asked the
lobbyist, for purposes of “full disclosure,” whether any event had
precipitated U-Haul’s interest in the amendment. In response, the lobbyist
did not advise of pending litigation concerning this issue but told the
committee that U-Haul had simply reviewed the statutes governing
transportation in the ordinary course of business and determined the
definitional provisions required clarification. The legislature later amended
the statute as requested by U-Haul.

¶36 During pretrial litigation, U-Haul moved in limine to exclude
any evidence of its lobbying efforts. The Wings, in turn, moved in limine to
exclude any evidence of the statutory amendments to A.R.S. § 28-101. After
a hearing, the superior court granted both motions.

¶37 At trial, the Wings’ attorney called U-Haul’s director of
engineering to testify and asked about the tow dolly’s design, eliciting an
admission that U-Haul had never conducted testing to determine whether
tow dollies would be safer with a brake system. Although the director
acknowledged that brakes “shorten the stopping distance,” he testified that
brakes can cause “many problems.” Shortly after this exchange, the Wings’
attorney asked the director how U-Haul had responded after discovering it

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had been found in violation of the statutory brake requirement. Over
defense counsel’s objection, the director stated that U-Haul did not
implement any changes.

¶38 As a follow-up, the Wings’ attorney asked whether U-Haul
had conducted any studies to determine the expense of bringing the tow
dollies into statutory compliance, and the director testified he was not
aware of any such report. On cross-examination, however, the director
testified that since the superior court’s A.R.S. § 28-952 partial summary
judgment ruling, U-Haul had investigated and evaluated a variety of
braking systems, claiming that U-Haul was “actively looking” for a
functional tow dolly brake. Likewise, when later asked whether tow dollies
are safer with brakes, U-Haul’s chairman testified that the company had a
team of employees researching a tow dolly braking system.

¶39 Based on this testimony, the Wings urged the superior court
to reconsider its pretrial ruling precluding the lobbying evidence, arguing
U-Haul had moved “the goal posts” by introducing evidence of its post-
accident efforts to comply with the statute. Specifically, the Wings asked
the court to admit the lobbying evidence to impeach the director and
chairman’s testimony that U-Haul had actively attempted to comply with
the statutory brake requirement after the court’s partial summary judgment
ruling. The court denied the Wings’ request, finding the lobbying evidence
did not directly contradict the challenged testimony. The court also
reaffirmed its earlier findings that the lobbying evidence was irrelevant and
unfairly prejudicial.

¶40 “We review evidentiary rulings for an abuse of discretion and
generally affirm a [superior] court’s admission or exclusion of evidence
absent a clear abuse or legal error and resulting prejudice.” John C. Lincoln
Hosp. & Health Corp. v. Maricopa Cty., 208 Ariz. 532, 543, ¶ 33 (App. 2004).
Prejudice from the erroneous exclusion of evidence “will not be presumed
but must be evident from the record.” Town of Paradise Valley v. Laughlin, 174 Ariz. 484, 487 (App. 1992). In other words, “an error is harmless if there
is no reasonable probability the verdict might have been different.” Id.

¶41 Relevant evidence is admissible unless it is otherwise
precluded by the federal or state constitution, an applicable statute, or rule.
Ariz. R. Evid. 402. Evidence is relevant if it has “any tendency” to make a
fact of consequence in determining the action “more or less probable than
it would be without the evidence.” Ariz. R. Evid. 401. Nonetheless, even
relevant evidence “may be excluded if its probative value is substantially
outweighed by [the] danger of . . . unfair prejudice.” Ariz. R. Evid. 403.

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¶42 Applying these rules here, the lobbying evidence did not tend
to prove any element of the Wings’ claims or otherwise make any fact of
consequence in the action more or less probable. That is, evidence of
U-Haul’s post-accident efforts to amend the governing statutes neither
increased nor decreased the probability that U-Haul violated the statutory
brake requirement without legal excuse. At trial, U-Haul asserted it
reasonably believed tow dollies were exempt from the statutory brake
requirement and maintained that no individual or entity had ever claimed
otherwise. Contrary to the Wings’ contention, U-Haul’s efforts to lobby the
legislature to amend the relevant statutes after the Wings’ filed the
underlying complaint have no bearing on the reasonableness of U-Haul’s
purported belief, at the time of the accident, that tow dollies were exempt
from the statutory brake requirement. Moreover, as reflected in their
statements to the superior court and their appellate briefing, the Wings
intended to use the evidence for an improper purpose—to show that
U-Haul’s representative was dishonest with the legislature—not to prove
that U-Haul knew tow dollies were subject to the statutory brake
requirement at the time of the accident. Therefore, on this record, the
superior court did not abuse its discretion by excluding the lobbying
evidence as both irrelevant and unfairly prejudicial.

¶43 Nonetheless, the Wings argue the superior court improperly
precluded them from using the lobbying evidence to impeach U-Haul’s
representatives at trial. Specifically, the Wings contend U-Haul “opened the
door” to the lobbying evidence when its representatives testified that the
company had actively investigated tow dolly brake systems after the court’s
A.R.S. § 28-952 partial summary judgment ruling. According to the Wings,
the lobbying evidence was necessary to refute the suggestion that U-Haul
had attempted to bring its tow dollies into statutory compliance when, in
fact, the reverse was true—U-Haul had successfully lobbied to amend the
law and bring the governing statutes into conformity with U-Haul’s
practices.

¶44 When “one party injects improper or irrelevant evidence or
argument, the ‘door is open,’ and the other party may have a right to
retaliate by responding with comments or evidence on the same subject.”
Pool v. Superior Court, 139 Ariz. 98, 103 (1984) (citations omitted). “The rule
is most often applied to situations where evidence adduced or comments
made by one party make otherwise irrelevant evidence highly relevant or
require some response or rebuttal.” Id.

¶45 Notwithstanding the Wings’ contention that U-Haul “opened
the door” to the lobbying evidence, the record reflects that the Wings’

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attorney, not defense counsel, first posed questions regarding U-Haul’s
post-accident conduct. These initial questions improperly called for
information about subsequent remedial measures and defense counsel’s
objection should have been sustained. Ariz. R. Evid. 407. While defense
counsel followed up on that line of questioning, he did not materially
broaden the scope of the inquiry beyond what had been posed on direct
examination. A party may not circumvent a preclusive evidentiary ruling
by questioning witnesses about tangentially-related matters and then
arguing that follow-up questions on cross-examination, which did not
broaden the scope of the initial questioning, “opened the door” to the
precluded evidence.

¶46 Furthermore, we reject the Wings’ assertion that the lobbying
evidence was admissible for impeachment purposes. While the chairman
and director testified that U-Haul actively pursued tow dolly braking
systems in response to the superior court’s A.R.S. § 28-952 partial summary
judgment ruling, neither denied that U-Haul had engaged in lobbying
efforts. Stated differently, the lobbying evidence does not directly
controvert the chairman and director’s testimony that U-Haul researched
and evaluated various tow dolly brake systems.

¶47 In summary, U-Haul’s post-accident conduct was irrelevant
to the Wings’ claims and the probative value of the lobbying evidence was
outweighed by its prejudicial effect. To the extent U-Haul’s representatives
testified to matters tangentially-related to the lobbying evidence, they did
so in response to a line of questioning first posed by the Wings’ attorney,
and the lobbying evidence did not directly contradict their testimony.
Therefore, the superior court did not abuse its discretion by precluding the
lobbying evidence.

III. Evidence of Similar Incidents

¶48 The Wings contend the superior court made a series of
improper evidentiary rulings regarding other similar tow dolly incidents.
Although the Wings do not challenge the court’s initial ruling excluding
such evidence, they argue the court improperly: (1) permitted a U-Haul
witness to testify that he was unaware of any similar tow dolly incidents;
(2) precluded the Wings’ attorney from confronting a U-Haul witness with
statistical evidence of similar incidents; and (3) allowed defense counsel to
argue in closing that the Wings had failed to present any evidence of similar
incidents.

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¶49 Before trial, U-Haul moved in limine to exclude evidence of
any other tow dolly accidents, incidents, claims, or lawsuits. In response,
the Wings avowed they would not “introduce . . . the details of another
accident” but asserted statistical evidence—demonstrating that nearly all
“loss of control tow dolly accidents” occurred when a passenger vehicle,
sport-utility vehicle, or pickup truck pulled a tow dolly rather than a six-
wheel truck—was admissible. After oral argument, the superior court
granted U-Haul’s motion in part, precluding evidence of specific tow dolly
incidents unless the Wings showed “sufficient similarity” but expressly
authorizing the use of statistical evidence to demonstrate U-Haul’s
knowledge of tow dolly safety.

¶50 At trial, the Wings’ attorney questioned the engineering
director regarding a study that purportedly showed 99 percent of U-Haul
tow dolly accidents involve passenger vehicles. In response, the director
testified that the study was not consistent with his “own experience” and
explained that U-Haul’s “accident statistics” were “very low” compared to
national standards and other companies. When pressed, however, the
director acknowledged he did not have any data comparing the percentage
of tow dolly accidents that involved “passenger vehicles” with “six wheel
trucks.”

¶51 Later, defense counsel called the former president of the
U-Haul Company of Oregon to testify and asked him whether, based on his
own experience, U-Haul’s tow dollies are safe. Although the former
president expressly disclaimed any mechanical or engineering expertise, he
testified that he and his family members have used tow dollies and, based
on his personal experience, he believes that they are safe. Defense counsel
then asked the former president whether he was personally aware of any
tow dolly accidents involving injury or death, and he testified, without
objection, that he was not aware of any such accidents occurring in Oregon.
On cross-examination, defense counsel objected when the Wings’ attorney
attempted to impeach the former president’s testimony with statistical
evidence of tow dolly accidents. At a sidebar, the superior court
admonished the Wings’ attorney that he could only use the statistical
evidence to impeach the former president’s testimony if it specifically
related to tow dolly accidents in Oregon. When cross-examination
resumed, the Wings’ attorney moved to another line of questioning.

¶52 During closing argument, defense counsel challenged the
Wings’ safety expert’s testimony that U-Haul’s tow dollies were unsafe and
“the worst,” noting the Wings had failed to present any evidence of other
lawsuits involving U-Haul’s tow dollies. Overruling the Wing’s objection,

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the superior court stated the jury had “heard the evidence” and “[t]his is
argument.” Moments later, at the outset of rebuttal, the Wings’ attorney
told the jurors that he “would love to talk . . . about other accidents” but
could not because “[t]hey’re not admissible in this case.” Arguing defense
counsel “knew” evidence of other incidents was inadmissible, the Wings’
attorney asserted defense counsel had “attempt[ed] to mislead” the jurors.

¶53 First, the Wings contend the superior court improperly
permitted the former president to testify that he was unaware of any tow
dolly incidents in Oregon. We are perplexed that the court allowed a fact
witness to testify regarding his personal belief in the safety of U-Haul tow
dollies and general lack of knowledge of tow dolly accidents in Oregon.
However, the Wings failed to object to the testimony that they now allege
was improper, and therefore waived the issue on appeal. See Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7 (App. 2006).

¶54 Second, the Wings argue the superior court improperly
precluded them from impeaching the former president’s testimony with
statistical evidence. The record reflects that the court instructed the Wings’
attorney that he could confront the witness with statistical evidence if it
related to the given testimony—the absence of tow dolly accidents in
Oregon. This restriction denied the Wings’ attorney the ability to impeach
the lay witness about the overall safety of the equipment based on the small
sample size—the State of Oregon. The Wings should have been allowed to
cross-examine this witness to demonstrate that the number of tow dolly
accidents in Oregon or lack thereof is not consistent with the national
average of accidents involving tow dollies. Again, this witness disclaimed
being an expert and this entire line of questioning was improper.

¶55 When questioning resumed, the Wings’ attorney moved on to
another line of questioning. Because the statistical evidence did not
controvert the witness’s testimony, it was not admissible for impeachment
purposes. Moreover, as the Wings acknowledge, they had the opportunity
to present the statistical evidence to the jury while questioning the director
of engineering.

¶56 Third, the Wings contend the superior court improperly
permitted defense counsel to argue that the Wings’ failure to present
evidence of other similar incidents negated their claim that U-Haul’s tow
dollies are unsafe. Although the court’s pretrial ruling excluding evidence
of other tow dolly incidents permitted the Wings to prove that particular
incidents were sufficiently similar to warrant admission, and they failed to

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do so, defense counsel’s argument, at a minimum, violated the spirit of the
ruling.

CONCLUSION

¶57 For the foregoing reasons, we vacate the judgment and
remand for a new trial on the Wings’ claim of negligence per se. Because it
has not prevailed on appeal, we deny U-Haul’s request for an award of its
appellate costs.

AMY M. WOOD • Clerk of the Court
FILED: AA

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